Child Custody and Relocation Law in Massachusetts

  • By:Karpenski & Schmelkin

Coming to a child custody agreement can be difficult, no matter what the circumstances are. A child custody arrangement can be further complicated when one of the parents wants to relocate out of the state or country with a child who is the subject of a custody or visitation order in Massachusetts.

Before the parent is allowed to move out of the state with the child(ren), they must get written agreement from the other parent. This agreement must then be presented to the court in order to have the original custody order modified. Parents are occasionally able to agree to new terms on their own, particularly if the move is to a nearby state and does not affect the other parent’s parenting time.

However, if the non-moving parent doesn’t give consent to the move, the matter will need to go before the court. Massachusetts custody law states:

A minor child of divorced parents who is a native of or has resided five years within this Commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this Commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the purposes of this and the two preceding sections.

Once the matter is brought to court, a hearing will be scheduled and ultimately a judge will decide to allow or deny the move. In this situation, it is advisable for both parents to seek legal representation from a Massachusetts custody lawyer.

Massachusetts courts will analyze the reasons behind a parent’s seeking to relocate the child(ren) out of the state. Most recently, in Miller v. Miller (2017), the Supreme Judicial Court held when presented with a request by a parent to relocate out of state with the child(ren), “the judge must first perform a functional analysis, which may require a factual inquiry, regarding the parties’ respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard.”

Once the judge completes a factual inquiry into the current custody arrangement, the judge will apply the following standard:

Joint (shared) custody

If custody of the child(ren) is shared, the judge makes a decision based on whether it is in the child(ren)’s best interest to move. The judge considers whether or not the child(ren)’s quality of life will improve, how the move will affect the current visitation schedule, whether the move will alter the relationship with the non-moving parent, and if the child(ren)’s needs will be fulfilled if the move is approved. The judge will hear arguments for and against the move from both parents.

Primary (sole) custody

If one parent has primary custody and would like to move out of state with the child(ren), the judge will apply the “real advantage” standard. This standard aligns the well-being of the child(ren) with the well-being of the parent with primary custody. There needs to be a real advantage to moving such as a better job opportunity, proximity to other family members, etc. The purpose of moving cannot be to move farther away from the other parent. If the parent seeking to relocate can demonstrate a real advantage the judge will assess the interests of the parent with primary custody, the interests of the child(ren), and the interests of the noncustodial parent, then balance those interests to determine whether relocation with the child(ren) is in the child(ren)’s best interests.

Ideally, parents will be able to come to an amicable agreement if one parent wants to move out of the state, but it’s obviously not possible in every situation. The goal of the Massachusetts’ court system is to make a decision with the best interests of the child(ren) in mind.

Posted in: Child Custody